Citation Nr: 0301961
Decision Date: 01/31/03 Archive Date: 02/07/03
DOCKET NO. 02-03 445 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUE
Entitlement to service connection for obstructive sleep
apnea.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
Robert E. P. Jones, Counsel
INTRODUCTION
The veteran served on active duty for more than 28 years
until his retirement in June 1997.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from an April 2001 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Houston, Texas.
FINDING OF FACT
The veteran developed chronic obstructive sleep apnea during
service.
CONCLUSION OF LAW
Chronic obstructive sleep apnea was incurred in active
service. 38 U.S.C.A. §§ 1110, 1131 (West Supp. 2002);
38 C.F.R. § 3.303 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000) (codified as amended at 38
U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West
Supp. 2001)). The law provides that the VA shall make
reasonable efforts to assist a claimant in obtaining evidence
necessary to substantiate his/her claim for a benefit under a
law administered by VA. See 38 U.S.C.A. § 5103A (West Supp.
2001). The Act is applicable to all claims filed on or after
the date of enactment, November 9, 2000, or filed before the
date of enactment and not yet final as of that date. 38
U.S.C. 5107. See also Karnas v. Derwinski, 1 Vet. App. 308
(1991).
The new law eliminates the concept of a well-grounded claim,
and redefines the obligations of VA with respect to the duty
to assist claimants in the development of their claims.
First, the VA has a duty to notify the appellant and his
representative, if represented, of any information and
evidence needed to substantiate and complete a claim. 38
U.S.C. §§ 5102 and 5103. Second, the VA has a duty to assist
the appellant in obtaining evidence necessary to substantiate
the claim. 38 U.S.C.A. § 5103A.
VA issued regulations to implement the VCAA in August 2001.
66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as
amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)).
The amendments were effective November 9, 2000, except for
the amendment to 38 C.F.R. § 3.156(a) which was effective
August 29, 2001. The amendment to 38 C.F.R. § 3.156(a), the
second sentence of 38 C.F.R. § 3.159(c), and 38 C.F.R. §
3.159(c)(4)(iii), apply to any claim to reopen a finally
decided claim received on or after August 29, 2001. VA has
stated that "the provisions of this rule merely implement
the VCAA and do not provide any rights other than those
provided by the VCAA." 66 Fed. Reg. 45,629. Accordingly,
in general where the record demonstrates that the statutory
mandates have been satisfied, the regulatory provisions
likewise are satisfied.
The Board finds that the veteran was provided adequate notice
as to the information and evidence needed to establish
service connection for obstructive sleep apnea. The Board
concludes that the discussions in the rating decision, the
statement of the case (SOC), and letters to the veteran,
apprised the veteran of the law applicable in adjudicating
the appeal, the reasons and bases for the VA decision, and
the information and evidence needed to substantiate the
claim. While the VA has not fully apprised the veteran of
the development the VA would attempt to perform, and the
evidence the veteran needed to provide, see Quartuccio v.
Principi, 16 Vet. App. 183 (2002), in light of the outcome of
this decision, the veteran is not adversely affected by such
lack of notification.
The Board notes that veteran's service record have been
obtained. Post service medical records have also been
obtained and the veteran has been provided VA examinations.
The veteran has not identified any outstanding available
evidence necessary to substantiate his claim. Therefore, no
further assistance to the veteran with the development of
evidence is required. In the circumstances of this case, a
remand to have the RO apply the VCAA would serve no useful
purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546
(1991) (strict adherence to requirements in the law does not
dictate an unquestioning, blind adherence in the face of
overwhelming evidence in support of the result in a
particular case; such adherence would result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(remands which would only result in unnecessarily imposing
additional burdens on the VA with no benefit flowing to the
veteran are to be avoided).
The VA has satisfied its obligation to notify and assist the
veteran in this case. Further development and further
expending of VA resources is not warranted. Taking these
factors into consideration, there is no prejudice to the
veteran in proceeding to consider the matters before the
Board. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).
Service connection may be established for a disability
resulting from personal injury suffered or disease contracted
in the line of duty or for aggravation of a preexisting
injury suffered or disease contracted in the line of duty.
38 U.S.C.A. §§ 1110, 1131.
The veteran maintains that he developed chronic obstructive
sleep apnea in service. The veteran asserts that he
experienced sleep apnea for many years during service and
that when he sought medical help in service the physicians
failed to properly diagnose his symptoms.
July 1983 service medical records reveal complaints of
fatigue, dizziness, blurred vision and general malaise since
October or November 1982. Medical records dated in August
1983 indicated that the veteran had sarcoidosis. In
September 1987 the veteran complained of feeling weak and
that he got totally exhausted when running. He reported that
he was unable to keep up with previous physical activities.
On examination just prior to discharge in June 1997, no
mention was made of obstructive sleep apnea.
The veteran submitted a December 2000 memorandum from an Air
Force physician who was the medical director of a Sleep
Disorders Center. The physician stated that the veteran was
diagnosed with obstructive sleep apnea, via clinical
evaluation and a polysomnogram, in July 2000. The military
physician reported that a review of the veteran's military
medical record demonstrated a long history of symptoms
consistent with obstructive sleep apnea. He noted complaints
beginning in 1982, and further complaints in 1983, and 1987,
which were consistent with obstructive sleep apnea. This
physician stated that while the veteran was not diagnosed
with obstructive sleep apnea until his referral to the Sleep
Disorder Center in 2000, it was reasonable to assume that his
condition predated the time of the actual diagnosis, and may
have persisted for many years. He further stated that
clinical documentation supported that the veteran symptoms
consistent with obstructive sleep apnea while on active duty
with the military. It was the medical director's opinion
that the veteran had obstructive sleep apnea prior to his
discharge from military service. He also noted that
obstructive sleep apnea had only recently been recognized in
the medical community.
A letter was received from the veteran's spouse in August
2001. She stated that she had been married to the veteran
since January of 1971. She reported that since 1982 she
noticed that the veteran began gasping for air, and it seemed
like he was not breathing for extended periods of time, while
he was asleep. She further reported that he became tired all
the time and that he would sometimes fall asleep while
waiting for a stoplight.
While the veteran did not receive a diagnosis of obstructive
sleep apnea during service, the Board is of the opinion that
the balance of the evidence indicates that the veteran first
developed chronic obstructive sleep apnea in service. There
are service medical records that show that the veteran
experienced fatigue and weakness in service, and there were
not always definite reasons found for those symptoms. Most
importantly, there is a medical opinion from a military
physician, specialized in the treatment of sleep disorders,
who has examined the veteran's medical history. As noted
above, he has expressed the opinion that the veteran
developed obstructive sleep apnea during service. Since
there is competent specialized medical evidence indicating
that the veteran's obstructive sleep apnea was incurred in
service, the Board finds that the evidence supports service
connection for obstructive sleep apnea.
ORDER
Entitlement to service connection for obstructive sleep apnea
is granted.
U. R. POWELL
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.